Our Noble Experiment Survived Again

When the Jackson, Mich., school board laid off schoolteacher Wendy Wygant while letting other teachers with less seniority stay on, she sued, charging that she was the victim of racial discrimination.

She is white. The teachers who kept their jobs in spite of low seniority are black.

President Reagan`s Justice Department, eager to ferret out cases of

``preferential treatment`` in its war against affirmative action, joined in her suit as it went to the U.S. Supreme Court.

Last week the verdict came down: Wygant won. The Reagan team lost. Rather than kill affirmative action, the Supreme Court clarified how it may be used and even endorsed the use of--Zounds!--preferential treatment, in some cases. Affirmative action survived again.

And that which does not kill it only makes it stronger.

Like Prohibition, affirmative action can be called a noble, if controversial, experiment, perhaps our nation`s noblest. But unlike Prohibition, it refuses to go away. It only gets fine-tuned by legislators and the courts. Although it makes its supporters nervous when it gets tested during a conservative administration, it is the best and most satisfying type of test. In this round, the more controversial aspects of affirmative action held up remarkably well.

The Justice Department`s brief argued that only the actual victims of discrimination should be entitled to preference and that the court should sweep away all governmental racial classifications that favor minorities in hiring, promotions and other aspects of employment. None of the justices supported that contention. Instead, Justice Lewis F. Powell Jr., writing the majority opinion, tended to support goals in hiring, if not firing, since layoffs, unlike hiring, ``impose the entire burden of achieving racial equality on particular individuals.``

This was hardly a radical thought. In situations of declining work force, affirmative action law has consistently supported the rights of whites already hired. Some companies and public agencies have avoided the layoff problem by working out reduced hours and job-sharing programs, which works as long as everyone is treated equally.

But another of Powell`s statements must have sent chills through the White House: ``We have recognized, however, that in order to remedy the effects of past discrimination, it may be necessary to take race into account. As part of this nation`s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy.``

Presumably, such ``innocent persons`` could have included Wygant except that the Jackson school board failed to provide proof of past discrimination that could justify its race-based layoffs. Its statistics that showed low minority faculty members were not enough. ``There are numerous explanations for a disparity between the percentage of minority students and the percentage of minority faculty,`` Powell wrote, ``many of them completely unrelated to discrimination of any kind.``

The Jackson school board defended its layoff policy as necessary to maintain a proportion of minority teachers that would be close to the proportion of minorities in the community. The lower courts upheld its right to do that, saying it helped provide ``role models`` for the students and remedy societal discrimination. But Powell overruled that, saying ``societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.``

The collective mind of the court is about as easy to read as tea leaves, particularly in such narrow decisions. The court voted 5-4 and issued five separate opinions, none of which was joined by more than three justices. Two other affirmative action cases, in which decisions are expected by July, should clarify more points.

Nevertheless, the court clearly moved away from the Reagan doctrine as it found the Jackson school board to have simply moved too far, too fast in its efforts to maintain racial balance in its faculty.

The court did not agree that only the victims of discrimination are entitled to benefit from preferential treatment. Even Justice William H. Rehnquist, the court`s most conservative member, joined Chief Justice Warren E. Burger in that opinion by Powell.

The characteristics that were used to deny equal treatment, the court said, can be taken into account in trying to remedy past discrimination. That should send a signal to employers everywhere that affirmative action is not dead. The heat is not off.